Keith Clark, Inc.

KEITH CLARK. INC. Keith Clark, Inc. and Sidney Typographical Union No. 81, International Typographical Union, AFL- CIO, Petitioner. Case 3-UC- 150 September 28, 1979 DECISION ON REVIEW AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On June 8, 1979, the Acting Regional Director for Region 3 issued a Decision and Order clarifying the unit in this proceeding, in which he clarified the unit of the Employer's employees represented by Peti- tioner to include the classification of tractor-trailer truckdriver. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Acting Re- gional Director's Decision. The National Labor Relations Board, by tele- graphic order dated August 6, 1979, granted the re- quest for review. Thereafter, the Employer filed a brief on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The issue on review, as noted, involves whether the Employer's newly created position of tractor-trailer truckdriver should be included within the unit of pro- duction and maintenance employees for which Peti- tioner is the bargaining agent. The Acting Regional Director decided that the job classification should be encompassed within the unit, based on an analysis of the pertinent clauses in the applicable collective-bar- gaining contract and of community-of-interest con- siderations. After a careful examination of the record, we have decided to dismiss the unit clarification peti- tion herein, because the evidence reveals that John Morrison, the only current tractor-trailer driver, also spends a substantial amount of time supervising unit employees at the plant. We emphasize that this deter- mination is entirely without prejudice to the later fil- ing of such a petition involving this job classification if circumstances should change, as, for example, if Morrison were to be assigned full-time driving duties. The important facts may be briefly stated. The Em- ployer is engaged in the printing of calendars at its two facilities in Sidney, New York. Before March 1978, there were 18 to 24 bargaining-unit employees in the shipping department, divided among 3 shifts. During the period Morrision was employed as a working foreman, a position not included in the bar- gaining unit. In this capacity, Morrison responsibly directed the work of employees in the shipping de- partment, including overseeing the loading of goods into the vehicles of common carriers. Morrison also had the power effectively to recommend the hiring and firing of employees, and exercised that power. Such recommendations by Morrison were followed without independent investigation by the Employer. Thus, Morrison clearly was a supervisor as defined in Section 2(11) of the Act. In March 1978 the Employer made a change in its operations. Instead of warehousing finished products at its Sidney facilities, the Employer began to ware- house its finished products at its Lyndhurst, New Jer- sey, facilities. This change in operations required shipments to Lyndhurst about three times per week by tractor-trailer truck, 10-1/2 months per year (March to mid-January), as well as less frequent trips to other points. In addition, this change resulted in a reduction of those employed in the shipping depart- ment in Sidney from 18 to 24 employees working 2 to 3 shifts, to 4 to 6 employees working a single shift. The Employer leased the necessary tractor-trailer equipment and assigned the driving duties to Morri- son. However, between March and mid-January. when Morrison was driving the tractor-trailer truck, he also continued to perform duties as a working fore- man in the shipping department. This consumed about 20 percent of his time each week. In addition, Morrison was employed as a full-time working fore- man for the remaining 1-1/2 months of the year. The supervisory nature of the working foreman position did not change when Morrison began driving the truck. It is evident from these facts that Morrison contin- ued to devote a significant portion of his time to the performance of supervisory functions over unit em- ployees after March 1978, specifically 20 percent of his time for 10-1/2 months per year and 100 percent of his time for 1-1/2 months. Thus, assuming without deciding that Morrison's tractor-trailer truckdriving duties would dictate the inclusion of that position in the unit, Morrison's continuing supervision of unit employees presents a serious conflict-of-interest prob- lem. This is so because he acts as a representative of management for a significant amount of time each week, as well as a rank-and-file unit employee. In these circumstances, we have no alternative other than to exclude Morrison from the unit.' Accord- ingly, we shall dismiss the instant petition. ORDER It is hereby ordered that the petition for unit clari- fication herein be, and it hereby is, dismissed. US. Radium Corporation, 122 NLRB 468. 472 473 (1958); Midland Broadcaslers, Inc., 176 NLRB 107, 110-111 (1969). 245 NLRB No. 98 773